Revision petition challenging dismissal of application to set aside ex parte judgment and decree. Court held application time-barred due to lack of specific averment regarding acquisition of knowledge necessary to meet 30-day limitation, dismissing plea based on cross-examination alone.
Revision petition dismissed; impugned orders upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C.R. No.2371 of 2015
-1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
C.R. No.2371 of 2015 Date of Decision.08.01.2019
Pritam Kaur
...Petitioner
Vs
Gurbax Singh and another
...Respondents
CORAM:HON'BLE MR. JUSTICE AMIT RAWAL
Present: Mr. Sanjay Jain, Advocate for the petitioner.
Mr. Deepak Sharma, Advocate for the respondents.
-.-
AMIT RAWAL J. (ORAL)
The present revision petition is directed against the orders dated 04.03.2015 (Annexure P-1) and 21.05.2014 (Annexure P-2) whereby application under Order 9 Rule 13 CPC for setting aside the ex parte judgment and decree dated 09.04.2011 passed in civil suit seeking specific performance of agreement to sell, has been dismissed.
The respondent-plaintiff instituted the suit on 24.12.2003 for specific performance of agreement to sell dated 29.09.2000 wherein the petitioner-defendant was proceeded ex parte on 11.09.2007, resulting into passing of the aforementioned judgment and decree. The application for setting aside the ex parte judgment and decree was filed on 16.03.2013.
Mr. Jain, learned counsel appearing on behalf of the petitioner submitted that trial court did not comply with the provisions of Order 5 Rule 17 CPC, while passing the ex parte order dated 11.09.2007. In support of aforementioned contention, relied
PANKAJ KUMAR 2019.01.14 14:34 I attest to the accuracy and integrity of this document
C.R. No.2371 of 2015 -2-
upon judgment of this Court rendered in Palo Vs. Ajaib Singh and others (2010-3) Vol. CLIX 143 whereby it has been held that in view of non-compliance of aforementioned provisions, the entire proceedings are vitiated in law. The objection qua limitation has been proved through the specific question in cross-examination to petitioner, AW5, where she admitted that Gurbax Singh and others had visited her premises on 14.02.2013 whereas the application was filed on 16.03.2013 i.e. within 30 days. No harm and prejudice would be caused to the plaintiff in case opportunity of hearing is given to defend the case by fixing the time line, subject to any terms and conditions, which this Court deems appropriate.
Mr. Sharma, learned counsel appearing on behalf of the respondents submitted that order under challenge raising the application was bereft of any compliance of provisions regarding the acquisition of knowledge. In the absence of the same, application was hopelessly time barred. There is no whisper of averment with regard to acquisition of knowledge and filing of the application within 30 days. A person has to stand on his own legs and cannot rely upon one line here and there in the cross-examination. Address given in the memo of parties was in tandem with the particulars mentioned in the agreement to sell. No contrary evidence to belie the same has been brought on record. In such circumstances, noncompliance of provisions of Order 5 Rule 17 CPC would not be material, thus, urges this Court for dismissal of the revision petition.
I have heard learned counsel for the parties, appraised the paper book and of the view that there is no force and merit in the
PANKAJ KUMAR 2019.01.14 14:34 I attest to the accuracy and integrity of this document
-3-
C.R. No.2371 of 2015
submissions of Mr. Jain. The order dated 11.09.2007 proceeding the petitioner ex parte reads as under:-
“Present: Shri S.M. Sharma, counsel for the plaintiff.
Notice issued to defendant through registered cover received back with the report of refusal. Case called several times but defendant has failed to appear. It is already 3.00 PM. No more wait is justified. One month of the date of registered AD has expired. In view of the same, defendant is proceeded against ex parte. In view of the same, defendant is proceeded against ex parte. To come up on 21.4.08 for ex parte evidence of the plaintiff. Long date is given due to heavy pendency.
Sd/Sunita Grover ACJ(SD)/11.9.07”
Rule 17 of Order 5 CPC enjoins duty upon the Court to follow the procedure. There is no dispute to the ratio decidendi culled out in Palo's case (supra). Be that as it may. The application submitted on 16.03.2013 did not aver specific pleading qua acquisition of knowledge. It is mandatory requirement of knowledge to overcome the rigour of limitation, as period of 30 days has been provided from the acquisition of knowledge to file the application. There is no whisper in the statement, even if application was bereft of the pleadings. One line in the cross-examination would not overcome
PANKAJ KUMAR 2019.01.14 14:34 I attest to the accuracy and integrity of this document
C.R. No.2371 of 2015
-4-
the hurdle of limitation as sought to be projected by Mr. Jain.
Mr. Sharma, during the course of hearing brought to the notice of the Court regarding transfer of the property by the petitioner in favour of her husband, in order to frustrate the agreement. This fact has not been denied. The finding of fact arrived at by the courts below dismissing the application cannot be faulted with and said to be suffered from illegality or without jurisdiction.
The impugned orders are upheld and the revision petition is dismissed.
| (AMIT RAWAL) JUDGE |
|
|---|---|
| January 08, | 2019 |
| Pankaj* | Whether Reasoned/Speaking Yes |
| Whether Reportable No |
PANKAJ KUMAR 2019.01.14 14:34 I attest to the accuracy and integrity of this document
2 issues framed by the court
Whether a revision petition must be dismissed when the application to set aside an ex parte judgment fails to aver acquisition of knowledge within the limitation period, relying only on cross-examinat
Whether non-compliance with Order 5 Rule 17 CPC validates the proceedings when there is no averment regarding acquisition of knowledge.
Colour shows how this judgement treated each authority
Palo Vs. Ajaib Singh and othersFollowed¶17
Palo Vs. Ajaib Singh and others (2010-3) Vol. CLIX 143
2 provisions across 1 enactments
Pritam Kaur
Gurbax Singh
another
Amit Rawal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
